Theme 2

Question 1

What is the central idea around dignity?

Answer 1

Dignity recognises that every human being has “absolute worth” and this worth creates a right that requires unconditional respect from others, namely the state and private individuals

Question 2

What does dignity require?

Answer 2

Dignity requires all of us to recognise and respect the worth of every individual regardless of their standing in society

Question 3

What does the Fredom of Religion case state about the obligation in dignity?

Answer 3

According to the CC in the Freedom of Religion South Africa case, recognition and respect for dignity impose a general obligation on individuals not to dehumanise individuals by treating them in an inhumane, insulting, or humiliating manner.

Question 4

Which ideas realate dinity to the development of the worth of individuals?

Answer 4

• Dignity has an internal dimension of self-esteem and an external dimension reputation
• The development of an individual’s worth is intertwined with others which takes place through social interactions. This aspect of an individual’s development is closely associated with the value of ubuntu which requires mutual respect, compassion, and humanness in these social interactions
• Dignity together with these rights creates an “affirmative and mutually supportive

Question 5

How is dignity related to other rights?

Answer 5

• The right to freedom of expression, at times, dignity and free speech will have to be balanced with each other where these two rights are at odds as seen in the Print Media South Africa case
• The fundamental right to equality, the rights to dignity and equality intersect to protect the worth of individuals as seen in the Qwelane case

Question 6

How does freedom of expression relate to dignity?

Answer 6

Freedom of expression is related closely to the right to dignity well dignity and equality rights are closely related and when one is infringed the other is most likely infringed

Question 7

What does section 10 of the Constitution state?

Answer 7

Section 10 of the Constitution states that: “Everyone has inherent dignity and the right to have their dignity respected and protected.”

Question 8

What does the dawood case state about section 10?

Answer 8

The CC in the Dawood case states that Section 10 makes it plain that dignity is a justiciable and enforceable right that must be respected and protected.

Question 9

What does dignity in law of injures aim to protect?

Answer 9

Dignity protects all the unique characteristics of the human image, collective dignity of groups, self-esteem, and reputation.

Question 10

What does PEPUDA stand for?

Answer 10

The Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000 (“PEPUDA”).

Question 11

What is the aimof PEPUDA?

Answer 11

PEPUDA, specifically prohibits “hate speech” and provides civil remedies for victims of such speech. The Act focuses on the collective dignity of groupsand provides civil remedies for victims who are victims of hate speech

Question 12

How does the Qwelana case define hate speech as?

Answer 12

The Qwelane case defined hate speech as any form of expression which “could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred

Question 13

How does offical customary law deal with dignity?

Answer 13

Official customary law seems to have a different approach to the classification of infringement of dignity. Customary law’s focus on ubuntu as a constitutional value adjacent to dignity

Question 14

How does common law relate with dignity?

Answer 14

Common law provides extensive protection to the interests of self-esteem, conceptualised as the internal dimension of dignity, and reputation, as the external dimension of dignity.
Common law protects self-esteem and reputation, making use of the generalist approach using its five elements

Question 15

What does the South African Human Rights Commission obo South African Jewish Board of
Deputies case state about dinigty and freedom of expression?

Answer 15

In the South African Human Rights Commission obo South African Jewish Board of
Deputies case the CC stated that there are three fundamental rights, all indispensable to any healthy constitutional order, the rights to equality, human dignity, and the right to freedom of speech and expression. In this constitutional dispensation, they are inextricably interconnected with what it means to be a citizen of a democracy, free to live a life in a condition of dignity and humanity. In this matter, these rights meet each other

Question 16

How has hate speech been used as a tool?

Answer 16

Hate speech has been used as a tool to dehumanise racial, ethnic, religious, and gender groups

Question 17

What does the Qwelane case state about the realtion between hate speech and dignity?

Answer 17

In Qwelane case the CC stated that hate speech is one of the most devastating modes of subverting the dignity and self-worth of human beings. This is so because hate speech marginalises and delegitimises individuals based on their membership in a group. It ignites exclusion, hostility, discrimination and violence against them it also seeks to undo the very fabric of our society as envisioned by our Constitution

Question 18

What does Kriegler J in Mamabolo say about the right to freedom of expression?

Answer 18

Kriegler J in Mamabolo states that freedom to speak one’s mind is inherent in this the of society the Constitution aims for, and this is promoted by the freedoms highlighted in sections 15 to 19 of the Bill of Rights. Namely the freedoms of conscience, expression, assembly, association and political participation

Question 19

What is stated in the Islamic Unity Convention case about the regulation of the freedom of expression?

Answer 19

In Islamic Unity Convention the CC considered the rationale for such regulation of freedom of expression, there is no doubt that the state has a particular interest in regulating this type of expression because of the harm it may pose to the constitutionally mandated objective of building a non-racial and nonsexist society based on human dignity. This is because of the critical need, for the South African community, to promote and protect human dignity, equality, freedom, the healing of the divisions of the past and the building of a united society. The expression that advocates hatred of people on the basis of immutable characteristics is particularly harmful to the achievement of these values as it reinforces and perpetuates patterns of discrimination and inequality

Question 20

What does section 16 of the Constitution state?

Answer 20

Section 16 of the Constitution guarantees freedom of expression while explicitly excluding certain forms of harmful speech.

Question 21

What does section 16(2)(c) of the Constituition address?

Answer 21

Section 16(2)(c) addresses hate speech, making it clear that such speech does not enjoy constitutional protection. That the right doesn’t extend to advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

Question 22

What does the Islamic Unity Convention case state about freedom of speech and democracy?

Answer 22

The Islamic Unity Convention case stated that our past restrictions on the freedom of expression and speech within South Africa were a denial of democracy itself, and the extent of these restrictions is not in line with the constitutionally protected culture of openness, democracy and universal human rights. Freedom of expression is essential foundation of a democratic society however, the broadmindedness and pluralism can be undermined by speech that threatens this democratic pluralism. Speech of an inflammatory kind may be restricted to guarantee free and fair elections in section 1 of the Constitution. The right to freedom of expression is thus not absolute and determining its parameters is important particularly where it might intersect other rights. The categories of expression enumerated in section 16(2) are not to be regarded as constitutionally protected speech. Section 16(2) therefore defines the boundaries beyond which the right to freedom of expression does not extend

Question 23

Is PEPUDA limited to hate speech?

Answer 23

PEPUDA is not limited to hate speech but serves as a broader framework for addressing unfair discrimination, hate speech, and harassment, in pursuit of an inclusive and equal society.

Question 24

What happende in the Qwelane case?

Answer 24

In Qwelane the facts are that Mr Jonathan Dubula Qwelane who published a newspaper article entitled “Call me names – but gay is NOT okay…”, which contained offensive, discriminatory, and critical remarks about “homosexuals”. The South African Human Rights Commission (SAHRC) investigated the matter and instituted proceedings in the Equality Court. The SAHRC alleged that the article contained hate speech as contemplated in PEPUDA. The Equality Court found that the article amounted to hate speech. The relevant parties appealed to the CC. The Court described hate speech “as a statutory delict” and amended section 10(1) of PEPUDA which deals with the regulation of hate speech.

Question 25

What does section 10 of PEPUDA state?

Answer 25

Section 10(1) of states that “Prohibition of hate speech is Subject to the provisno in section 12, no person may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm and to promote or propagate hatred.”

Question 26

What are the five overarching ideas that courts help structure hate speech liability?

Answer 26

1. Use of words: “publish, propagate, advocate or communicate words”. 2. Prohibited grounds: The words must be based on “one or more of the prohibited grounds” in PEPUDA “against any person”. Such as race, gender, or sexual orientation. 3. Objectively interpreted: “could reasonably be construed to demonstrate a clear intention and courts evaluate how it would be understood in its full context. 4. Hateful: “and to promote or propagate hatred”. 5. Harmful: “to be harmful or to incite harm", recognising that harm extends beyond physical damage to include psychological, social, and systemic harm

Question 27

What did Qwelane case state about s10(1) "speech"?

Answer 27

The CC in Qwelane confirmed that section 10(1) must be interpreted purposively, capturing both verbal and non-verbal expressions. The law targets the meaning behind the words, not merely the words themselves.

Question 28

What happened in Nelson Mandela case?

Answer 28

In the case of Nelson Mandela Foundation, the SCA had to determine whether the public display of the old South African flag during the “Black Monday” protests constituted hate speech. They lodged a complaint with the Equality Court, which found that the display amounted to hate speech

Question 29

In the Nelson Mandela Foundation case the SCA refined the conditions of liability under PEPUDA, which all have to be met and viewed objectively?

Answer 29

1. The speech must constitute publication, propagation, advocacy, or communication of words. 2. It must be based on a prohibited ground. 3. It must objectively show an intention to be harmful or to incite harm, and to promote or propagate hatred​

Question 30

Which case states that images can constiutute hate speech?

Answer 30

In Nelson Mandela Foundation, the SCA ruling suggests that images, gestures, or symbols may qualify as “words” under section 10(1), depending on context.

Question 31

What are four communicative acts listed in PEPUDA?

Answer 31

1. Publishing refers to making words publicly available. 2. Propagating means spreading an idea widely. 3. Advocating involves actively endorsing or promoting a viewpoint. 4. Communicating—the broadest term—includes any method of transmitting meaning, whether verbal, written, or non-verbal

Question 32

What are the elements in the Qwelane case that need to dealt with when dealing with hate speech?

Answer 32

In Qwelane case it is stated when dealing with hate speech it must first be determined whether the conduct of the wrongdoer contained words and, secondly, whether these have been published, propagated, advocated, or communicated. As such, this element has two parts.

Question 33

What does the Nelson Mandela Foundation case state about the meaning of words in s10(1) of PEPUDA?

Answer 33

In the Nelson Mandela Foundation case, it states the concept of communication requires some form of public transmission or dissemination. The prohibition extends to the expression of ideas by conduct. It targets the ‘meaning behind the words, and not simply the words

Question 34

What does Qwelane state communication in s10(1) of PEPUDA?

Answer 34

In Qwelane it states that the reading of the word communicate per s39(2), read “communicate” to mean communication that excludes private conversations. Hate speech prohibitions are concerned with the impact and effect of the hate speech and protecting the public good; this is inevitably limited when communicated in the private sphere.

Question 35

What does Qwalene case state is the purpose of the prohibitation of hate speech?

Answer 35

In the Qwalene case, the court states that the prohibition of hate speech seeks to protect against the dissemination of hatred that causes or incites harm, in that it undermines the dignity and humanity of the target group and undermines the constitutional project of substantive equality and acceptance in our society. Provisions prohibiting hate speech can be contrasted with our law around unfair discrimination.

Question 36

What is stated in the Whatcott case?

Answer 36

In the Whatcott case, the Supreme Court of Canada underscored the effects of hate speech, not the intent, and notes that systemic discrimination tends to be more widespread than intentional discrimination. This Court has acknowledged that “systemic motifs of discrimination” are part of the fabric of our society

Question 37

What did the Qwelane case state about s10(1)(c) meaning of the word words and speech?

Answer 37

In Qwelane case the CC held that the word in s10(1)(c) of the Equality act “speech” must be interpreted broadly, attaching a literal interpretation to these words would not achieve the objects of the provision. An interpretation of the term “words” to include speech, ideas, ideologies, belief, meaning, instructions and so forth, affords this term a sensible and reasonable interpretation that is constitutionally compliant. A purposive interpretation of this sort is undoubtedly required

Question 38

What are the facts in the Masuku case?

Answer 38

In Masuku, the CC considered a series of statements made by Mr Bongani Masuku in the context of the Israeli-Palestinian conflict following the Gaza War of 2008/2009. Mr Masuku initially posted a statement on an online blog, in which he made critical remarks about Zionists, including a reference to ‘Hitler!’. Subsequently, at a rally organised by the Palestinian Solidarity Committee at the University of the Witwatersrand, he made further statements directed at his opponents. The South African Human Rights Commission (SAHRC) investigated the matter and instituted proceedings in the Equality Court, which found that all the statements amounted to hate speech under PEPUDA. On appeal, the SCA assessed the matter primarily under section 16(2)(c) of the Constitution, without engaging with PEPUDA, and concluded that Mr Masuku’s statements did not constitute hate speech.

Question 39

What are the facts in the Afriforum case?

Answer 39

In AfriForum, the SCA reaffirmed the importance of interpreting expression within its broader social, historical, and political context. The case concerned whether struggle songs sung by Mr Julius Malema, leader of the Economic Freedom Fighters (EFF), between 2016 and 2020, specifically “Dubula ibhunu” and “Shisa lamabhunu”, constituted hate speech. Certain lyrics, when translated into English, were alleged to incite violence against particular minority groups in South Africa. AfriForum, a civil society organisation, lodged a complaint with the South African Human Rights Commission (SAHRC), arguing that these expressions amounted to hate speech. It recognised that struggle songs carry historical and political significance and that their meaning cannot be assessed in isolation. Rather than making a general ruling on struggle songs, the Court focused on the specific circumstances in which the expressions were used, assessing them within the framework of political speech

Question 40

What does section 1 of PEPUDA state?

Answer 40

Section 1 of PEPUDA lists explicitly protected characteristics, including race, gender, sex, sexual orientation, disability, religion, culture, and language. These include broadly mentioned lists in order to keep the law evolving

Question 41

Whar does the Afriform case state about section 1 of PEPUDA?

Answer 41

The Afriform case holds that section 1 of PEPUDA should be the first stage of inquiry when dealing with hate speech. An intention to incite harm and promote hatred will be deemed if the reasonable reader could construe the words or speech as reflecting that intention. It is accepted that the reasonable reader is one of reasonable intelligence, that she would understand the statement in its context, and would have regard not only to what is expressly stated but also to what is implied

Question 42

How does the court in Masuku case decide if hate speech existed?

Answer 42

In Masuku case, it is shown that a court will decide if hate speech existed by reasonable reader who would have found that there was a clear intent to be harmful or incite harm, and propagate or promote hatred

Question 43

How did the court in Qwelane decidewhat constiuted hate speech?

Answer 43

In Qwelane the court held that when plugging in an abstract reasonable person test in order to construe the meaning of alleged hate speech, courts ought to be mindful of our diverse and dynamic society and not inadvertently reify prejudice

Question 44

How did the courts in AfriForum decide what constituted hate speech?

Answer 44

In AfriForum, the Court stated that a reasonable person is one of reasonable intelligence, capable of understanding both explicit and implied meanings. This ensures that hate speech findings are not based purely on hypersensitive reactions, while also preventing covertly harmful speech from being overlooked

Question 45

Whst are the two steps in Masuku that the CC help identify if something constitutes hate speech?

Answer 45

In Masuku, the CC has identified two steps to see if something constitutes hate speech, both of which are evaluated according to an objective standard. First, the meaning of the words must be determined. The next step is to assess the effect of the expression, specifically, whether it propagates hatred and causes harm.

Question 46

What are the courts that have rejected a purely subjective approach for two key reasons?

Answer 46

- If liability depended on the target group’s perception, it could make hate speech law overly broad, allowing claims to be made based on individual sensitivities rather than a clear legal standard. - If liability depended on the speaker’s actual intent, proving hate speech would be difficult—most harmful speech is not openly framed as hatefu

Question 47

What was held in Afriforum case abour interpreting the meaning of a persons words?

Answer 47

In the Afriforum case, it was held that key factors when interpreting meaning to include who is the speaker, the context in which the speech occurs, the impact of the speech, and the likelihood of inflicting harm or propagating hatred. It further holds that the harm doesn't have to be physical

Question 48

How was expert testimony used in Masuku used in the Court?

Answer 48

In Masuku, the Court affirmed that expert testimony may help clarify patterns of discrimination, historical uses of language, and social impact. However, courts do not allow experts to dictate the legal meaning of speech—that responsibility rests solely with the judiciary.

Question 49

What does the AfriForum case state about expert testimony?

Answer 49

In AfriForum, the Court considered expert testimony on the role of struggle songs in South African political history but ultimately relied on its own legal analysis to determine meaning.

Question 50

What is the difference in hate speech and offensie speech?

Answer 50

Courts have drawn a clear distinction between offensive speech, which remains protected under section 16(1) of the Constitution, and hate speech, which is regulated under section 10(1) of PEPUDA

Question 51

What does Nelson Mandela Foundation state about the dehumanisation of hate speech?

Answer 51

In Nelson Mandela Foundation, the SCA explained that hate speech dehumanises its target group, reinforcing historical patterns of exclusion. The Court found that the public display of the old South African flag was not simply an offensive act—it glorified apartheid and promoted racial exclusion, making it a form of hate speech.

Question 52

What was stated in Bester case?

Answer 52

In Bester, the CC explained that it is “accepted that the test to determine whether the use of the words is racist is objective – whether a reasonable, objective and informed person, on hearing the words, would perceive them to be racist or derogatory

Question 53

How was harm defined in Masku case?

Answer 53

In Masku the court stated that ‘harmful’ can be understood as deep emotional and psychological harm that severely undermines the dignity of the targeted group

Question 54

What was stated in Qwelane case about the definition of hateful?

Answer 54

In Qwelane case it is stated that merely hurtful expressions, especially when understood in everyday parlance, are insufficient to constitute hate speech. “Hateful” refers to expression that causes emotional pain to a person’s dignity, hate speech is not the same as disagreement, criticism or a strong opinion because it involves the following descriptors: detestation, vilification, enmity, illwill and malevolence. It is imperative to point out at the outset that there is no requirement of an established causal link between the expression and actual harm committed

Question 55

What is the psychological harm of hate speech found in Qwelane case?

Answer 55

Psychological harm: In Qwelane, the Court found that hate speech deepens psychological harm, reinforces self-doubt, and creates an environment where individuals feel unworthy of dignity and equal treatment.

Question 56

What is the group harm of hate speech found in Masuku case?

Answer 56

Group harm: Masuku emphasised that hate speech contributes to negative stereotyping, which fuels systemic discrimination against entire communities

Question 57

What is the societal harm of hate speech found in Nelson Mandela case?

Answer 57

Societal harm: Nelson Mandela Foundation highlighted how hate speech undermines national unity and reconciliation, reinforcing divisions that prevent the realisation of substantive equality.

Question 58

What does section 12 f PEPDA state?

Answer 58

Section 12 of PEPUDA is primarily concerned with dissemination of discriminatory material, it also establishes defences available in hate speech cases. The provision aligns the scope of PEPUDA with the constitutional right to freedom of expression under section 16 by recognising exceptions for certain forms of protected expression

Question 59

Section 12 of PEPUDA is primarliy concerned in?

Answer 59

- Artistic creativity; - Academic and scientific inquiry; - Fair and accurate public interest reporting

Question 60

What section 21 of PEPUDA deals with?

Answer 60

Section 21 of PEPUDA grants the Equality Court broad powers to issue appropriate orders when hate speech is proven.

Question 61

What do the remedies in section 21 range from?

Answer 61

These range from: - Financial compensation for emotional and psychological harm, - Interdicts to prevent further hate speech, - Public apologies and corrective measures, to - Referrals for criminal prosecution where appropriate

Question 62

What are the remedal powers reflecting PEPUDA focus?

Answer 62

- Compensate victims for harm suffered, including financial loss and emotional distress. - Deter future violations through orders of restraint, special measures, or policy audits. - Encourage social change by mandating apologies, diversity training, and proactive reforms.

Question 63

What are the three conditions to the liabilty if hate speech in Qwelane?

Answer 63

Qwelane case states that there are three conditions to the liability of hate speech: - Use of Words - Prohibited grounds - Objectively shows the intent to be hateful and harmful

Question 64

What is is the African legal tradition of injurys dealt with?

Answer 64

The African legal tradition of injuries deals with different types of injuries differently. Each type of injury will have its own set of rules for determining liability, this is caustic. Each type of injury also has its own set of rules for how a wrongdoer repairs the harm that has been caused.

Question 65

What did Knoetze state about the African legal tradition of injuries?

Answer 65

Knoetze stated that the African legal tradition of injuries is focused on restitution in kind (the return goods) and restoring harmony (the restoration of broken relationships) within a broader community as opposed to mere monetary compensation

Question 66

What is stated in Mbura case?

Answer 66

As stated in Mbura case, in customary law, there appears not to be a clear-cut distinction between dignity as self-esteem (the internal dimension of dignity) and as reputation (the external dimension of dignity) when dealing with the customary law delict of “defamation"

Question 67

What is stated in Mogale?

Answer 67

In Mogale case, it was stated that our own indigenous law also does not in general allow damages claims for defamation unless allegations of witchcraft are involved

Question 68

What does accusing a victim of being a witch imply?

Answer 68

Accusing a victim of being a witch implies that this individual used supernatural forces to cause misfortune to others

Question 69

What are the elements of the delict of Witchcraft as stated in Ngcobo?

Answer 69

- It states that the wrongdoer actually and expressly called the victim a witch - The wrongdoer made the accusation with malice and without good faith - It would appear that the victim has to prove that the wrongdoer made the accusation, and the wrongdoer has to prove that the accusation was made without malice and in good faith

Question 70

What right does falsely accusing someone of withcraft encroach?

Answer 70

Falsely accusing a victim of witchcraft encroaches upon this individual’s dignitarian interests as this person is subjected to various forms of dehumanisation. An allegation of withcharft infringes on the dignity of a person

Question 71

What is the remedy of witchcraft, in customary law?

Answer 71

Remedy appears to take the form of both criminal sanctions and civil reparations. The wrongdoer may be required to pay a fine, pay compensation, tender an apology to a victim and/or slaughter an animal for purposes of a purification ritual or a reconciliatory meal.

Question 72

What does Himonga state about ubuntu?

Answer 72

In Himonga it is stated that in the final Constitution, ubuntu was elevated to a non-enumerated constitutional value by the aforementioned judgments with equal status to other enumerated constitutional values

Question 73

What is stated in MEC for Health and Social Development case about ubuntu?

Answer 73

In MEC for Health and Social Development case, ubuntu holds the promise of infusing African ideas to other systems of law, such as the common law with its European roots

Question 74

What was stated about ubuntu in the CC in Dikoko?

Answer 74

It was stated that accordingly, certain ideas of ubuntu, such as humaneness, solidarity, reconciliation, and restoration, which find more direct expression in the link between ubuntu and dignity and the link between ubuntu and restorative justice. Ubuntu - botho is highly consonant with rapidly evolving international notions of restorative justice. Deeply rooted in our society, it links up with world-wide striving to develop restorative systems of justice based on reparative rather than purely punitive principles.

Question 75

What is the aim of remedies in custmary delict law?

Answer 75

Causing harm creates an imbalance not only between individuals but to society as a whole. As such, the relationship between a victim and a wrongdoer must be healed in order to fully reintegrate these individuals into the broader society to achieve social harmony

Question 76

What is hatefull as stated in Qwelane?

Answer 76

Hatefulness is extreme detestation and vilification that can provoke discrimination and exclsuion against the target this goes beyond mere offensive and unpopular speech because this speech involves detestation and vilification which can lead to discriminatory activities

Question 77

What does Nelson Mandela Foundation/Masuku state about hate speech and how it depicts a group?

Answer 77

Hateful speech depicts the target group as being inferior, illegitimate, dangerous, and undeserving of equal treatment which re-enforces marginalisation and social division

Question 78

What is harmfulness as stated in Qwelane?

Answer 78

Harmfulness is more than mere offence, the speech must cause or incite psychological harm, social harm and systemic harm which undermines dignity, fuels discrimination, and distrupts social cohesion

Question 79

What does the objective standard approach avoid?

Answer 79

This approach avoids liability based on personal sensitivities but it also captures subtle forms of hateful speech which ensures a fair balance of competing interests (all cases)